January 29, 2009

The request was quickly granted in other cases when prosecutors told military judges that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

But Judge James Pohl, an Army colonel, said he found the government's reasoning "unpersuasive."

The judge's failure to channel Obama administration policy is a sign that the procedures now in existence are reliable. Except all the other judges went along with it.

In every other circumstance, you and the ACLU would be screaming "undue Command influence if somebody up the chain of command attempted to tamper wth a Judge's decisions.

Delaying the date of trial is not meant to, and should not in any way, change the outcome of the trial. Does proceeding to trial three weeks after regime change serve the interest of justice? Let's say your lawyer gets hit by a bus three weeks before your murder trial -- do you not ask for a continuance?

As for the fairness and independence of military courts: Where's my copy of Military Justice Is to Justice as Military Music Is to Music?

"As for the fairness and independence of military courts: Where's my copy of Military Justice Is to Justice as Military Music Is to Music?"

That book was written in the 1960s before many reforms to the UCMJ were enacted. It is about as relevent to military courts today as a 1967 copy of Rolling Stone is to the current top 40 charts.

The only reasons you would mention that book is that you obviously know nothing about how military courts actually work and have a natural and reflexive dislike of anything with the work military attached to it. You just gave everyone on the thread a reason not to take you seriously.

I see this as yet another example where Obama is just like Bush. Unable to direct those judges to rule his way. This is a case where the administration just wants to delay, delay, delay. Those innocent goatherders need a speedy trial.

That's some good quality interference the WaPo is running for Obama. "The decision throws into some disarray the administration's plan to buy time as it reviews individual detainee cases.... The Pentagon may now be forced to withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent" (emphasis added). Forced? Poppycock. They may choose to drop the charges, but no one is forcing them to do so; they could just as easily choose to press ahead with the prosecution.

"No. When discussing anything on the internet, I always assume that Aahz's law (far truer and more universal than Godwin's) applies. I'm still waiting for the real information however."

I practiced as a military lawyer for nine years and did 10s of courts-martial. Defendents in military courts are allowed better access to witnesses and the case against them than in civilian courts. In a courts-martial, the government witness are generally military and are ordered to talk to the accused's counsel before trial. In the civilian world, they don't have to and usually don't. This greatly inhibits the defense's ability to prepare for and get a fair trial in civilian courts. That is just one difference that helps the defendent. In addition, the rule of evidence under the UCMJ are nearly identical to the Federal Rules. To the extent that there is a difference, the differences usually favor the accused. Military Courts-Martial get a bad rap I think and I say that as someone who is plenty skeptical of the military having served in it for nine years.

"Is it really that simple, Professor? Is this military court an Article III court? If it isn't (and I don't purport to know), doesn't that make a difference?"

No it is not. The judges do not have lifetime tenure. But the process is independent of the exectutive by law. The President, even as commander and chief, cannot overrule a military judge. The commander can only bring the charges. He can't run the trial and he can't convict. So, functionally it is an Article III court.

Does he want to change the military commissions--in which case he needs to go to Congress?

Does he want to move the cases to courts martial or Article III courts?

Does he think some detainees are being wrongly tried and should be released?

Given all the he has on his plate, and given all the agony Congress went through with the MCA, it seems Obama should have just let the military commissions process go forward until it demands his attention.

Does being Commander-in-Chief mean Obama can violate the law be simply ordering a command?

Should I do a search on "former law student" "Abu Ghraib" on this blog just to see if there is any hypocrisy. No wait, I only have to look to 2 days ago to find it.

So I guess Obama can't deny prisoners a right to a speedy trial simply because he is the Commander in Chief. I guess he needs to come up with some better reasoning then just signing an executive order and saying "I won".

former law student said... Isn't Obama the Commander-in-Chief? Is there not a chain of command?If he has to persuade the Army to do stuff, we're in a world

What, FLS! Are you saying you no longer believe in Rule of Law(yers) and seek to shred the Sacred Parchment that reigns supreme over the People?

******************** PJ said... Courts are courts

Is it really that simple, Professor? Is this military court an Article III court? If it isn't (and I don't purport to know), doesn't that make a difference?

Well, I'm no lawyer, but maybe a non-lawyer can distill it down to some simple maxims that are perhaps 85% correct. 10% disputable by lawyers paid to argue otherwise, and 5% wrong...

Article I says that Congress makes the rules and laws that apply to land and naval forces and discplining them, the rules that apply to piracy and felonies affecting Americans on the high seas (interpreted to mean those areas outside the US not under sovereign control of a nation). And offenses against the laws of nations.Congress makes law enabling the convening of tribunals lesser to the Supreme Court. It also defines the Jurisdiction of Courts. The 9th Circuit cannot take a NJ case, the 2nd Circuit or state court does not have jurisdiction over crimes and rules violations of military even in the 2nd Circuit, state unless the military crimes and rules violations happen in areas that could or do generally affect civilians, where civilian law applies..

Article II has the Executive tasked with appointments to courts, and the convening of tribunals. And commissioning of all officers. Article III invests all judicial power of the USA in one Supreme Court (Which makes them in a position to have final say about matters affecting US citizens in the military justice system or for unlawful enemy combatants - where Article III powers do apply and do not infringe on treaties and international, maritime laws. )

As I dimly perceive it, Obama wants to understand the basis for each prosecution before going ahead with it. To me, this seemed reasonable and unobjectionable. I did not realize how much autonomy the judge had.

Now if the accused objected because of his right to a speedy trial, that's another issue.

Courts have as their First job the maintenance of a judicial independence. Who will let a court's ruling end a case and let life resume, if anyone believed the Judge was not Hearing a case of facts and law for Blind decision. If the court system is rigged, just dispense with the Show Trial. Call Blago and let him auction off the decision. A good movie showing this reality is Spielberg's Amistad. Good job Col.Pohl.

I'd always been under the impression that the military courts were under military jurisdiction, i.e. part of the executive branch. Are they part of the judicial branch the way regular courts are? If so then it makes sense that Obama couldn't order the trials to be suspended, although I would think he could order the members of the military involved in the case to take a vacation.

There is one ironic bit about this, though. Even if the court is entirely within the executive branch, it only follows that Obama *must* have a right to stop its proceedings if you believe in...

(drum roll)

... the dreaded UNITARY EXECUTIVE. That's right, the much-hated (by the left) principle that everyone in the executive branch answers to the President.

My father was a military prosecuting attorney (I don't remember the official term) serving at Camp Pendleton 1965 - 1967. I used to ask him what happened to the guys who were innocent of the charges. There were no "innocents", my father would tell me. If the military charged them, they were guilty. He never lost a case. Thankfully, he was transferred out before the Life Magazine expose in '69 of the brig at Camp Pendleton.

PS The trial judge is, hands down, the most powerful job in the legal system. The findings of facts come out of his and the jury he guides actions. Those powerful little facts then determine everything down the Apellate line, unless the Apellate court just ignores them and substitutes their own made up case facts.That's when the fix is in for some hard to know reason, but this besmirches the court's reputation among the attorneys, so it is seldom done.

From the second page of the article:Nashiri has been in U.S. custody since late 2002, and he is one of three detainees the government has acknowledged was subjected to an interrogation technique that simulates drowning while he was held by the CIA.

Haha. 'Cause now that Obama's president, we don't call it "waterboarding" any more.

BJM - if Pohl is forced to retire as a Colonel it will not be because of Obama. He goes before a GO board, in his case of JAGs. The political interference, if you will, is that promotion board result list must then be approved by the Senate. Senators can block approval (its all or nothing) for a given board's list. Or it can be "held" and some officers may retire and the objection goes away. Or the entire list can be rejected by Senate (its happened though not since nineties) and a new board tries again.

Is that what people were upset about? I thought it was related to perceived efforts to uncheck the checks and unbalance the balances.

That, too. But you heard no end of railing against the dreaded Unitary Executive.

Mind you, this was largely because many of the people who were complaining were clueless, and thought that the Unitary Executive WAS some principle that said the President could ignore the checks and balances on his power.

The whole point of opening Gitmo was to get around the administration of justice as practiced in the USA. It wasn't because they thought our prisons were not secure.

I have to agree with alpha here. Let's submit them to American justice. Put them all in Pelican Bay while they await their trials. That place is secure enough. I wonder which gang they would join? Hey, we could make a reality show about it, "My Bitch is Named Akmed!"

You know, it occurs to me that delaying prosecution only makes rational sense if you're worried about people being inappropriately set free. After all, delaying prosecution for X days just means innocent people spend X more days in prison. It doesn't help innocent people (assuming any such people are imprisoned in Gitmo at all).

You could argue that he wants to avoid unfair convictions, but that would ignore the pardon power -- if he decides the military tribunals unfairly convicted people, he as President has the power to let them go anyway. Of course he might not have the balls to do that...

The Joint Chiefs of Staff HAVE AN ABSOLUTE CONSTITUTIONAL DUTY to stand behind Guantanamo Military Judge James Pohl UNTIL OBAMA OVERCOMES “RES IPSA LOQUITUR” BY SUPPLYING HIS LONG FORM BIRTH CERTIFICATE AND PROVING HIS ELIGIBILITY TO BE PRESIDENT UNDER ARTICLE 2 OF THE US CONSTITUTION.

Parker-One of the posters above mentioned dog vomit. That's the easy, super-intelligent way to dismiss an issue that many of us, you and me included, have about the "sweeping under the rug" of the Birth Certificate question.